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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 33)
TAUBMAN CENTERS, INC.
(Name of Subject Company (Issuer))
SIMON PROPERTY ACQUISITIONS, INC.
SIMON PROPERTY GROUP, INC.
WESTFIELD AMERICA, INC.
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
876664103
(CUSIP Number of Class of Securities)
James M. Barkley, Esq. Peter R. Schwartz, Esq.
Simon Property Group, Inc. Westfield America Inc.
National City Center 11601 Wilshire Boulevard
115 West Washington Street 12th Floor
Suite 15 East Los Angeles, CA 90025
Indianapolis, IN 46024 Telephone: (310) 445-2427
Telephone: (317) 636-1600
(Name, Address and Telephone Numbers of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
------------------------------
Copies to:
Steven A. Seidman, Esq. Scott V. Simpson, Esq.
Robert B. Stebbins, Esq. Skadden, Arps, Slate, Meagher & Flom LLP
Willkie Farr & Gallagher One Canada Square
787 Seventh Avenue Canary Wharf
New York, New York 10019 London, E14 5DS, England
Telephone: (212) 728-8000 Telephone: (44) 20 7519 7000
------------------------------
CALCULATION OF FILING FEE
================================================================================
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
- --------------------------------------------------------------------------------
$1,160,416,360 $232,083.27
================================================================================
* Estimated for purposes of calculating the amount of the filing fee only.
Calculated by multiplying $20.00, the per share tender offer price, by
58,020,818 shares of Common Stock, consisting of (i) 49,298,965 outstanding
shares of Common Stock, (ii) 2,270 shares of Common Stock issuable upon
conversion of 31,784,842 outstanding shares of Series B Non-Participating
Convertible Preferred Stock, (iii) 7,202,785 shares of Common Stock
issuable upon conversion of outstanding partnership units of The Taubman
Realty Group, Limited Partnership ("TRG") and (iv) 1,516,798 shares of
Common Stock issuable upon conversion of outstanding options (each of which
entitles the holder thereof to purchase one partnership unit of TRG which,
in turn, is convertible into one share of Common Stock), based on Amendment
No. 2 to the Registrant's Preliminary Revocation Solicitation Statement on
Schedule 14A filed on May 14, 2003, the Registrant's Schedule 14D-9 filed
on December 11, 2002, the Registrant's Annual Report on Forms 10-K and
10-K/A for the year ended December 31, 2002 and the Registrant's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2003.
** The amount of the filing fee calculated in accordance with Regulation
240.0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50th
of one percent of the value of the transaction.
/X/ Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $248,745.11
Form or Registration No.: Schedule TO (File No. 005-42862),
Amendment No. 1 to the Schedule TO
and Amendment No. 5 to the Schedule TO
Filing Party: Simon Property Group, Inc.; Simon Property
Acquisitions, Inc.; Westfield America, Inc.
Date Filed: December 5, 2002, December 16, 2002 and
January 15, 2003
/ / Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
/ / Check the appropriate boxes below to designate any transactions to which
the statement relates.
/X/ third-party tender offer subject to Rule 14d-1.
/ / issuer tender offer subject to Rule 13e-4.
/ / going-private transaction subject to Rule 13e-3.
/ / amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting
the results of the tender offer: / /
================================================================================
SCHEDULE TO
This Amendment No. 33 amends and supplements the Tender Offer
Statement on Schedule TO originally filed with the Securities and Exchange
Commission (the "Commission") on December 5, 2002, as amended and supplemented
by Amendment No. 1 thereto filed with the Commission on December 16, 2002, by
Amendment No. 2 thereto filed with the Commission on December 27, 2002, by
Amendment No. 3 thereto filed with the Commission on December 30, 2002, by
Amendment No. 4 thereto filed with the Commission on December 31, 2002, by
Amendment No. 5 thereto filed with the Commission on January 15, 2003, by
Amendment No. 6 thereto filed with the Commission on January 15, 2003, by
Amendment No. 7 thereto filed with the Commission on January 16, 2003, by
Amendment No. 8 thereto filed with the Commission on January 22, 2003, by
Amendment No. 9 thereto filed with the Commission on January 23, 2003, by
Amendment No. 10 thereto filed with the Commission on February 7, 2003, by
Amendment No. 11 thereto filed with the Commission on February 11, 2003, by
Amendment No. 12 thereto filed with the Commission on February 18, 2003, by
Amendment No. 13 thereto filed with the Commission on February 21, 2003, by
Amendment No. 14 thereto filed with the Commission on February 21, 2003, by
Amendment No. 15 thereto filed with the Commission on February 27, 2003, by
Amendment No. 16 thereto filed with the Commission on February 27, 2003, by
Amendment No. 17 thereto filed with the Commission on February 28, 2003, by
Amendment No. 18 thereto filed with the Commission on March 3, 2003, by
Amendment No. 19 thereto filed with the Commission on March 6, 2003, by
Amendment No. 20 thereto filed with the Commission on March 18, 2003, by
Amendment No. 21 thereto filed with the Commission on March 21, 2003, by
Amendment No. 22 thereto filed with the Commission on March 28, 2003, by
Amendment No. 23 thereto filed with the Commission on March 31, 2003, by
Amendment No. 24 thereto filed with the Commission on April 30, 2003, by
Amendment No. 25 thereto filed with the Commission on May 2, 2003, by Amendment
No. 26 thereto filed with the Commission on May 9, 2003, by Amendment No. 27
thereto filed with the Commission on May 12, 2003, by Amendment No. 28 thereto
filed with the Commission on May 13, 2003, by Amendment No. 29 thereto filed
with the Commission on May 21, 2003, by Amendment No. 30 thereto filed with the
Commission on May 27, 2003, by Amendment No. 31 thereto filed with the
Commission on May 30, 2003 and by Amendment No. 32 thereto filed with the
Commission on June 4, 2003 (as amended and supplemented, the "Schedule TO")
relating to the offer by Simon Property Acquisitions, Inc., a Delaware
corporation (the "Purchaser") and wholly owned subsidiary of Simon Property
Group, Inc., a Delaware corporation ("SPG Inc."), to purchase all of the
outstanding shares of common stock, par value $.01 per share (the "Shares"), of
Taubman Centers, Inc. (the "Company") at a purchase price of $20.00 per Share,
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated December 5, 2002
(the "Offer to Purchase"), and the Supplement to the Offer to Purchase, dated
January 15, 2003 (the "Supplement"), and in the related revised Letter of
Transmittal (which, together with any supplements or amendments, collectively
constitute the "Offer"). This Amendment No. 33 to the Schedule TO is being filed
on behalf of the Purchaser, SPG Inc. and Westfield America, Inc. ("WEA").
Capitalized terms used and not defined herein shall have the
meanings assigned to such terms in the Offer to Purchase, the Supplement and the
Schedule TO, as applicable.
The item numbers and responses thereto below are in accordance
with the requirements of Schedule TO.
Item 11. ADDITIONAL INFORMATION.
On June 9, 2003, the United States District Court for the
Eastern District of Michigan (the "Court") issued an Order
(the "Order"), a copy of which is filed herewith as Exhibit
(a)(5)(FFF). The Order denied SPG Inc. and the Purchaser's May
29, 2003 Emergency Motion to Modify the Court's Order Granting
Stay of Preliminary Injunction, issued May 20, 2003.
Item 12. EXHIBITS.
(a)(5)(FFF) Order issued on June 9, 2003 by the United States District
Court for the Eastern District of Michigan in the matter of
Simon Property Group, Inc. et al., Plaintiffs, vs. Taubman
Centers, Inc., et al., Defendants, and Lionel Z. Glancy,
Plaintiff, vs. Robert S. Taubman, et al., Defendants.
SIGNATURE
After due inquiry and to the best of their knowledge and
belief, the undersigned hereby certify as of June 10, 2003 that the information
set forth in this statement is true, complete and correct.
SIMON PROPERTY GROUP, INC.
By: /s/ James M. Barkley
---------------------------------
Name: James M. Barkley
Title: Secretary and General Counsel
SIMON PROPERTY ACQUISITIONS, INC.
By: /s/ James M. Barkley
---------------------------------
Name: James M. Barkley
Title: Secretary and Treasurer
After due inquiry and to the best of its knowledge and belief,
the undersigned hereby certifies as of June 10, 2003 that the information set
forth in this statement is true, complete and correct.
WESTFIELD AMERICA, INC.
By: /s/ Peter R. Schwartz
---------------------------------
Name: Peter R. Schwartz
Title: Senior Executive Vice President
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- --------------------------------------------------------------------------------
(a)(5)(FFF) Order issued on June 9, 2003 by the United States District
Court for the Eastern District of Michigan in the matter of
Simon Property Group, Inc. et al., Plaintiffs, vs. Taubman
Centers, Inc., et al., Defendants, and Lionel Z. Glancy,
Plaintiff, vs. Robert S. Taubman, et al., Defendants.
EXHIBIT (a)(5)(FFF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
----------
SIMON PROPERTY GROUP, INC., et al,
CASE NUMBER: 02-74799
PLAINTIFF(S),
HONORABLE VICTORIA A. ROBERTS
v.
TAUBMAN CENTERS, INC., et al,
DEFENDANT(S).
____________________________________/
ORDER
I. INTRODUCTION
This matter is before the Court on Plaintiffs' Emergency Motion to Modify
the Court's May 20, 2003 Order. On May 20, 2003, the Court granted Defendants'
Motion to Suspend Injunction Pending Appeal. Plaintiffs' motion is prompted by
Defendants' lobbying of the Michigan Legislature for amendments to the Michigan
Control Share Acquisitions Act. The proposed amendments could render this
Court's prior rulings and the pending appeal moot. Oral argument was heard on
Friday, June 6, 2003.
The Court DENIES Plaintiffs' motion.
II. ARGUMENTS
House Bill 4764 ("HB 4764") was introduced on May 27, 2003 in the Michigan
State Legislature (the "Legislature") and referred to the Legislature's
Committee on Commerce.
Among other things, it proposed that the Michigan Control Share Acquisitions Act
("Michigan Control Share Act"), MCL 450.1790, ET SEQ., be amended to provide
that:
- "...formation of a group, before or after the date of the amendatory
act . . ., does not constitute a control share acquisition of shares
... held by members of the group..."
- either shareholders or directors can grant voting rights to control
shares acquired in a control share acquisition.
- only the directors can propose amendments to the articles of
incorporation.
Pl. Exh A, HB 4764 at Secs. 791(6), 798(1), 611(3).
Defendants admit they have actively lobbied for the proposed amendments.
They submitted memoranda for the Legislature's consideration in support of their
position. While Plaintiffs have lobbied against such amendments to the Michigan
Control Share Act, they contend they had no knowledge of Defendants most recent
efforts, which presumably had some sway in the drafting and consideration of HB
4764.(1)
Plaintiffs assert that Defendants' lobbying violates the Court's May 20th
Order. Defendants were ordered to "refrain from engaging in any activity to
impede Simon's tender offer." Order at p. 8. Plaintiffs argue that modification
of the Court's Order is now required, because Defendants' appeal to the
Legislature is designed to thwart Simon's tender offer. Plaintiffs propose that
the Court modify its May 20th Order to allow Simon to solicit votes to call a
special shareholder's meeting, and to allow a vote to be held at that meeting on
whether to amend the "excess share provision" in the Taubman Centers, Inc.
- ----------
(1) Earlier versions of the bill were defeated in the Senate in March 2003.
2
(TCI) Articles of Incorporation.(2) The remaining restrictions imposed in the
Order, as to both Plaintiffs and Defendants, would stand.(3)
Without such a modification, Plaintiffs assert that they and TCI
shareholders would be substantially injured because their voting rights may be
nullified by the proposed legislation before the Sixth Circuit rules on the
pending appeal. Plaintiffs opine that, if shareholders vote before enactment of
the proposed amendments, Plaintiffs will have a colorable argument that it has
"vested rights" against which the proposed amendments cannot be retroactively
applied.
Defendants would not be irreparably injured by this "limited" modification
of the Court's Order, argue Plaintiffs, because the vote can be reversed if the
Sixth Circuit rules in Defendants' favor. And, the Court's grant of a
preliminary injunction will be preserved for appellate review.
Defendants deny that their lobbying efforts are within the scope of
activities prohibited by the letter or spirit of the Court's May 20th Order. In
any event, Defendants
- ----------
(2) The "excess share provision" prohibits anyone from acquiring shares in
excess of 8.23% of the value of the outstanding capital stock of TCI (except
certain persons who may own up to 9.9%). Under the Articles, any transfer of
stock that would result in a person owning shares in violation of the excess
share provision is void AB INITIO and the intended transferee will not acquire
any rights in the shares. This provision can only be amended by a two-thirds
vote of TCI's shareholders.
(3) Because the Court's Order prohibited Plaintiff from soliciting votes to
call a special meeting in order to request that shareholders vote on whether to
amend the Articles, Plaintiffs were also prohibited from attempting to purchase
the shares necessary for it to succeed in its takeover bid. Defendants were
expressly prohibited from: repurchasing shares, adopting a Shareholders' right
plan (i.e., poison pill), amending the bylaws, calling a shareholder's meeting,
and asking for consents and/or designations by shareholders.
3
argue that such a prohibition would constitute a prior restraint in violation of
Defendants' First Amendment rights. Defendants argue that their advocacy in
favor of legislation is protected speech, even if it directly impacts on prior
and future rulings of the Court.
Defendants further argue that Plaintiffs' proposed modification of the stay
Order would cause Defendants irreparable harm, because Plaintiffs would be
poised to take down shares within a few hours of a Sixth Circuit ruling, while
Defendants would be restrained under the stay Order from taking corporate
measures to oppose the tender offer.
Since Plaintiffs filed their motion, HB 4764 was further modified by the
Commerce Committee and the Michigan House of Representatives. On June 4, 2003,
the bill was voted out of the Committee with a modification that 1) allowed
shareholders (as well as directors) to propose an amendment to the articles of
incorporation, and 2)omitted language giving retroactive effect to a provision
that would establish that formation of a group is not a control share
acquisition. House Substitute for HB 4764 at Secs. 611(3), 791(6). On June 5,
2003, however, the bill was further modified in the House and passed with
retroactive language reinserted. House Substitute for HB 4764 at Secs. 791(6),
798a.
III. APPLICABLE LAW AND ANALYSIS
A. DEFENDANTS' LOBBYING EFFORTS DO NOT VIOLATE THE COURT'S ORDER
An order prohibiting a certain form of speech can constitute a "prior
restraint" in violation of the First Amendment:
The term prior restraint is used "to describe administrative and
judicial orders forbidding certain communications when issued in
advance of the time that such communications are to occur."
Temporary restraining orders and permanent injunctions--i.e.,
court orders that actually forbid speech activities--are classic
examples of prior restraints.
4
ALEXANDER V U.S., 509 U.S. 544, 550 (1993)(citations omitted).
In antitrust cases, the United States Supreme Court has upheld the right
of a business to advocate for or against legislation even if it will have the
effect of hindering competition. In EASTERN RAILROAD PRESIDENTS CONFERENCE V
NOERR MOTOR FREIGHT, INC., 365 U.S. 127 (1961), the United States Supreme Court
expressly rejected a claim that defendants' publicity campaign, aimed at
influencing legislation that would be contrary to its competitors' interest,
violated antitrust laws. Noting the implications of such a finding on the
legislative process and constitutional rights the Court stated:
In a representative democracy such as this, these branches of
government act on behalf of the people and, to a very large
extent, the whole concept of representation depends upon the
ability of the people to make their wishes known to their
representatives. To hold that the government retains the power to
act in this representative capacity and yet hold, at the same
time, that the people cannot freely inform the government of
their wishes would impute to the Sherman Act a purpose to
regulate, not business activity, but political activity, a
purpose which would have no basis whatever in the legislative
history of that Act. Secondly, and of at least equal
significance, such a construction of the Sherman Act would raise
important constitutional questions. The right of petition is one
of the freedoms protected by the Bill of Rights, and we cannot,
of course, lightly impute to Congress an intent to invade these
freedoms.
NOERR, 365 U.S. 127 at 529-530 (footnote omitted).
Likewise, in CALIFORNIA MOTOR TRANSPORT CO. V TRUCKING UNLIMITED, 404 U.S.
508, 510 (1972), where defendants were accused of instituting state and federal
proceedings for the purpose of eliminating their competition, the Court stated:
We conclude that it would be destructive of rights of association
and of petition to hold that groups with common interests may not,
without violating the antitrust laws, use the channels and
procedures of state and federal agencies and courts to advocate
their causes and points of view respecting resolution of their
business and economic interests
5
vis-a-vis their competitors.
See also MASSACHUSETTS NURSES ASSOC. V DUKAKIS, 570 F.Supp. 628, 636 (D.
Mass. 1983)("]T]he First Amendment to the United States Constitution protects
individuals' rights to petition their federal and state legislatures to seek to
convince the legislatures to pass laws which will be in their interest.").
The principle discussed in NOERR MOTOR FREIGHT and CALIFORNIA MOTOR
TRANSPORT applies here. This Court's May 20th Order did not expressly or
impliedly prohibit Defendants from lobbying the Legislature, nor could it have.
Defendants have a First Amendment right to attempt to change the law, even if
such efforts directly impact matters pending before the Court. Indeed,
Plaintiffs do not dispute that prohibiting Defendants from such activity would
be an unconstitutional prior restraint. Consequently, the Court finds that
Defendants' lobbying activity did not and does not violate the stay Order.
B. MODIFICATION OF THE STAY ORDER IS NOT WARRANTED
Despite their request that the Court deem Defendants' actions to be a
direct violation of the May 20th Order, Plaintiffs do not request that the Court
modify its Order to preclude Defendants from proceeding with their lobbying
efforts. Rather, Plaintiffs request that the Court allow them to proceed with a
shareholder vote on the excess share provision "to permit the [TCI] shareholders
to have the tender offer considered based on the law in effect when they
invested in [TCI], when they tendered their shares, and when the Court issued
its preliminary injunction ruling." Pl. Reply br. at 2.
But for the stay Order, Plaintiffs argue they would be at liberty to engage
in counter-measures in advance of a final vote on the proposed amendments by the
Legislature;
6
namely, Plaintiffs could proceed with a vote to amend the Articles, which they
argue would give them "vested rights" in their tender offer under the law in
effect at the time the vote is taken. This, Plaintiffs argue, would preserve
"the rights [the Court] intended to confer on shareholders." Oral Argument
Tr. at p.35.
Despite their acknowledgment that it is fully within the legislative
branch's authority to enact or amend laws to clarify or even reverse
interpretations of its statutes by the judicial branch, Plaintiffs,
nevertheless, argue that the Court must "rebalance the equities" because of the
pending legislation. Plaintiffs further maintain that the requested relief does
not implicate Defendants' First Amendment right to lobby the Legislature,
because they are not asking that the Court prohibit Defendants' lobbying
efforts.
Plaintiffs' rationale is flawed. First, contrary to Plaintiffs' assertions,
modification of the stay Order as Plaintiff's propose WOULD encroach upon
Defendants' First Amendment rights. Plaintiffs' request is solely because of
Defendants' attempt to influence legislation which may be detrimental to
Plaintiffs' interests. Although this is not a request that the Court directly
prohibit Defendants' lobbying efforts, Plaintiffs do request that the Court hold
the Defendants' legislative advocacy against them and reassess the relative
harms that the parties may suffer as a result of continued enforcement of the
May 20th stay. A reassessment and modification on this basis, however, could
hardly be considered anything but a punitive response to Defendants' exercise of
their First Amendment rights.
Second, contrary to their assertions, Plaintiffs request that the Court do
far more than maintain the status quo. Plaintiffs actually request that this
Court insulate them from possible changes in the law that could sound the death
knell to their lawsuit. Plaintiffs, however, were unable to direct the Court to
any authority that holds either that they are
7
entitled to be protected from acts of the Legislature or that the Court should
or could take steps to insulate its rulings from acts of the Legislature in the
manner proposed.
Furthermore, Plaintiffs misstate this Court's purpose in granting their
motion for preliminary injunction. The Court did not grant Plaintiffs' motion to
insure that their rights "vest" under a particular interpretation of the
Michigan Control Share Act or to grant Plaintiffs final relief. The Court
granted the motion simply to preserve Plaintiffs' rights, as the Court has
determined them to be, pending a final determination on the merits. Because the
relevant area of law is unsettled, the Court stayed the injunction, in part, so
that the extent of those rights could be clarified. The Legislature has taken up
that task. It is not the function of this Court to protect Plaintiffs from
changes that the Legislature may make that may be contrary to Plaintiffs'
interests.
Finally, Plaintiffs' request that the Court "rebalance the equities"
essentially amounts to a request for reconsideration of the May 20th Order.
Eastern District of Michigan Local Rule 7.1(g)(3) provides for reconsideration
only if the movant demonstrates a palpable defect by which the court and the
parties have been misled, and further demonstrates that correcting the defect
will result in a different disposition of the case.
Plaintiffs have not identified a palpable defect that impacts the Court's
prior ruling. It is true that the Court did not consider the pending legislation
or Defendants' efforts in favor of it. However, it would have been inappropriate
for the Court to weigh either fact against Defendants. Thus, the fact that
Defendants did not apprise the Court of developments on the legislative front,
or their advocacy in favor of legislative amendments, was not a palpable defect
which warrants reconsideration of the prior ruling.
8
IV. CONCLUSION
Plaintiffs' Emergency Motion to Modify the Court's May 20, 2003 Order is
DENIED.
IT IS SO ORDERED.
/s/ Victoria A. Roberts
----------------------------
Victoria A. Roberts
United States District Judge
Dated: JUN 09 2003
9
